When Coercion Lacks Care: Competency to Make Medical Treatment Decisions and Parens Patriae Civil Commitments

The subject of this Article is people who have been civilly committed under a state’s parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment. This Article proposes that in cases of parens patriae civil commitments, an actual or rational understanding should be required. A test of competency that requires actual or rational understanding of a proposed treatment is needed in these cases given the lack of insight commonly experienced by people with psychotic disorders, the potential of psychotic symptoms to interfere with rational decision-making, and the immense harms—both immediate and long-term—that can result from untreated psychotic symptoms

Beyond Brown v. Board of Education: The Need to Remedy the Achievement Gap

Addresses the need to remedy the disparity in academic achievement of black and white students and examines why this disparity continues to exist in spite of the desegregation decrees issued under Brown. Reviews how a court decides whether a school district has complied with a desegregation decree. Explains why schools are being released from desegregation decrees despite achievement gap

Curiouser and Curiouser: Involuntary Medications and Incompetent Criminal Defendants After Sell v. United States

The government should not place a defendant to whom it is administering involuntary medications in front of a jury. The test the Supreme Court created in Sell v. United States will likely result in the administration of involuntary medications to incompetent defendants in more than rare instances. Given the importance of the right to a fair trial, and the threat to this right posed by administering involuntary medications, the Supreme Court understandably cautions in its decision in Sell that the instances in which the government will be justified in administering such medications for the purpose of rendering a defendant competent to stand trial “may be rare.” Under the test the Court sets forth in Sell, however, what instead might be rare are instances in which a court decides that involuntary medications are not justified. Under the Sell test, the government may administer involuntary medication that is: (1) medically appropriate; (2) substantially unlikely to have side effects that may undermine the fairness of the trial; (3) decided upon after taking account of less intrusive alternatives; and (4) necessary significantly to further important governmental trial-related interests. Mentally ill defendants who are both incompetent and dangerous will suffer violations of not only their right to a fair trial but also their right to equal protection of the laws. In almost all cases, it is likely that the government will easily meet the first three criteria of the test. The only real limiting factor is the last criterion, which requires courts to decide whether the government\u27s interests are “important”—a concept that the Court in Sell leaves undefined and since, lower courts have defined in a variety of ways. Due to the confusion and interpretation of the law, it is doubtful that Sell will be the Court\u27s last word on involuntary medications and incompetent criminal defendants

The Costs of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, and the Question of Who Decides

Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States. In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness to himself or others. In Sell, the Court implied that an incompetent pretrial detainee is entitled to a judicial hearing, when the medications are necessary to render the detainee competent to stand trial. In either case, the decision whether to allow the government to administer involuntary antipsychotic medications should be made as quickly as possible, and for that reason, medical personnel should decide. Moreover, the Sell Court’s decision requiring a judicial hearing is ineffective in protecting those interests of detainees that the Court thought would be protected by a judicial hearing. Given the nature of antipsychotic medication, requiring a judicial hearing on the question of involuntary antipsychotic medications is unlikely to protect the detainee’s interest in a fair trial. Furthermore, the delay involved in the judicial process harms the detainee’s health and compromises the government’s interest in rendering the detainee competent to stand trial. Thus, mandating that only a judge may authorize involuntary antipsychotic medications costs both the detainee and the government, and benefits no one

The (Mis)Application of Rule 404(b) Heuristics

In all of the federal circuit courts of appeals, application of Rule 404(b) of the Federal Rules of Evidence has been distorted by judicially-created tests that, while intended to assist trial courts in properly admitting or excluding evidence, do not actually test for the kind of evidence prohibited by this rule. Rule 404(b) prohibits evidence of crimes, wrongs, or other acts if the purpose for admitting the evidence is to prove action in accordance with a character trait. This evidence is commonly referred to as propensity evidence, or once a drug dealer, always a drug dealer evidence. This Article examines three counter-productive heuristics that the federal circuit courts of appeals have created: (1) multi-factor tests based on a paragraph of dicta from the Supreme Court\u27s opinion in Huddleston v. United States; (2) a set of exceptions based on a misreading of the list of permitted purposes for admitting other-acts evidence found in Rule 404(b)(2); and (3) a set of additional exceptions extrapolated from an advisory committee note\u27s reference to intrinsic evidence. Recently, the U.S. Court of Appeals for the Seventh Circuit, in an en banc decision, recognized that its approach to Rule 404(b) had become so distorted that a new approach was required. This Article concludes that the other federal circuit courts of appeals should follow this example and proposes that such a reframing of a circuit\u27s approach to Rule 404(b) should not require a decision of the court en banc

Trial Rights and Psychotropic Drugs: The Case Against Administering Involuntary Medications to a Defendant During Trial

This paper explores the legal problems that arise when the government undertakes to render a criminal defendant competent to stand trial, by administering involuntary psychotropic medications. Among these problems are the infringement of the defendant\u27s trial rights, such as the right to receive assistance of counsel and to confront witnesses, as well as interference with the defendant\u27s ability to testify and to present evidence of a mental illness. This paper explores these problems with special reference to the case of Russell Weston, who has been charged with murder in the deaths of two Capitol police officers and who spent more than three years in a federal correctional facility while the District of Columbia federal courts decided whether the government could administer involuntary medications for the purpose of rendering him competent to stand trial. The paper concludes that because the unfair prejudice resulting from involuntary medications cannot be cured, the government should be prohibited from administering involuntary medications to a defendant during trial

When Coercion Lacks Care: Competency to Make Medical Treatment Decisions and Parens Patriae Civil Commitments

The subject of this Article is people who have been civilly committed under a state\u27s parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves. Even after they have been determined to be so disabled by their mental illness that they cannot care for themselves, many are nonetheless found to be competent to refuse medical treatment. Competency to make medical treatment decisions generally requires only a capacity to understand a proposed treatment, not an actual or rational understanding of that treatment. This Article proposes that in cases of parens patriae civil commitments, an actual or rational understanding should be required. A test of competency that requires actual or rational understanding of a proposed treatment is needed in these cases given the lack of insight commonly experienced by people with psychotic disorders, the potential of psychotic symptoms to interfere with rational decision-making, and the immense harms-both immediate and long-term-that can result from untreated psychotic symptoms

Unreasonable: Involuntary Medications, Incompetent Criminal Defendants, and the Fourth Amendment

Part I of this Article discusses the legal protections against involuntary medical treatment. In the typical right to refuse treatment case, a patient’s interests are divided—the patient’s interest in autonomous decisionmaking about his health requires that he be allowed to refuse medical treatment but the patient’s interest in preserving his health, and perhaps even his life, requires that he be administered involuntary treatment. Generally, when a patient chooses to refuse treatment at the expense of his own life or health, courts have ruled that the government’s interest in preserving the patient’s life or health is insufficient to justify involuntary treatment. In a small subset of right to refuse treatment cases, however, the government seeks to administer involuntary treatment for some purpose other than preserving the patient’s life or health. Part II examines such cases, including several Supreme Court cases decided under the Due Process Clause and several decided under the Fourth Amendment. As Part III explains, in following the Supreme Court’s decisions in the Due Process Clause cases, trial courts have permitted the government to administer involuntary antipsychotic medications that risk causing, and in some cases have caused, harms that are at least as severe as harms that in the Fourth Amendment cases prompted the Supreme Court to rule that involuntary medical treatment was not justified. Part IV analyzes the government’s interest in rendering criminal defendants competent to stand trial, proposing that a Fourth Amendment-like balancing test—instead of the current due process medical appropriateness test—would better ensure that courts decide to allow involuntary antipsychotic medications only when the government’s interest in rendering a criminal defendant competent to stand trial is important enough to justify the harms. The Article concludes that under the current due process test, incompetent criminal defendants are being subjected to harms that might not be justified by the government’s interest in bringing them to trial

Curiouser and Curiouser: Involuntary Medications and Incompetent Criminal Defendants After Sell v. United States

The government should not place a defendant to whom it is administering involuntary medications in front of a jury. The test the Supreme Court created in Sell v. United States will likely result in the administration of involuntary medications to incompetent defendants in more than rare instances. Given the importance of the right to a fair trial, and the threat to this right posed by administering involuntary medications, the Supreme Court understandably cautions in its decision in Sell that the instances in which the government will be justified in administering such medications for the purpose of rendering a defendant competent to stand trial “may be rare.” Under the test the Court sets forth in Sell, however, what instead might be rare are instances in which a court decides that involuntary medications are not justified. Under the Sell test, the government may administer involuntary medication that is: (1) medically appropriate; (2) substantially unlikely to have side effects that may undermine the fairness of the trial; (3) decided upon after taking account of less intrusive alternatives; and (4) necessary significantly to further important governmental trial-related interests. Mentally ill defendants who are both incompetent and dangerous will suffer violations of not only their right to a fair trial but also their right to equal protection of the laws. In almost all cases, it is likely that the government will easily meet the first three criteria of the test. The only real limiting factor is the last criterion, which requires courts to decide whether the government\u27s interests are “important”—a concept that the Court in Sell leaves undefined and since, lower courts have defined in a variety of ways. Due to the confusion and interpretation of the law, it is doubtful that Sell will be the Court\u27s last word on involuntary medications and incompetent criminal defendants